Case: 16-12626

Date Filed: 06/17/2016

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12626-J
________________________
IN RE: JOSEPH ROGERS, JR.,
Petitioner.
__________________________
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. 2255(h)
_________________________
Before: TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
B Y T H E P A N E L:
Joseph Rogers, Jr. seeks authorization to file a second or successive 28 U.S.C.
2255 motion. He can file such a motion only if it is certified . . . by a panel of
the appropriate court of appeals to contain either:
(1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.

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28 U.S.C. 2255(h). The court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this subsection. Id.
2244(b)(3)(C); see also Jordan v. Secy, Dept of Corrs., 485 F.3d 1351, 1357-58
(11th Cir. 2007) (explaining that this Courts determination that an applicant has
made a prima facie showing that the statutory criteria have been met is simply a
threshold determination).
I.

BACKGROUND

Mr. Rogers was sentenced under the Armed Career Criminal Act (ACCA),
which imposes an enhanced mandatory minimum prison sentence if a defendant
convicted of being a felon in possession of a firearm has three or more previous
convictions for a violent felony.

18 U.S.C. 924(e)(1). The ACCA provides

three definitions of violent felony. First, 924(e)(2)(B)(i) covers any offense

that has as an element the use, attempted use, or threatened use of physical force
against the person of another.

This is known as the elements clause.

Second,

924(e)(2)(B)(ii) covers any offense that is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.

The first 9 words of that subsection are called

the enumerated crimes clause, and the last 13 are called the residual clause.
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In the instant application, Mr. Rogers asserts that his ACCA-enhanced

sentence is void in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the ACCA is
unconstitutionally vague.

The Supreme Court has determined that Johnsons

holding is a new substantive rule of constitutional law that applies retroactively to

cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268
(2016).
II.

THE CLEAR-UNCLEAR TEST

In evaluating a Johnson-based application, we are bound by 2255(h)(2) and

our recent decisions in In re Adams,1 In re Hires,2 and In re Thomas3 to grant or
deny the application based on whether, under the record and our precedent, it is
either clear or unclear that the applicants 2255 motion contains a Johnson claim.
We may only deny the application if it is clear that the motion will not contain a
Johnson claim. This is so when: (1) the sentencing court record demonstrates that
the sentencing court specifically identified three prior convictions as qualifying as
ACCA predicates under the elements or enumerated crimes clauses, or based on the
serious drug offense provision of the ACCA; and/or (2) under binding precedent,

1
2
3

No. 16-12519 (11th Cir. June 15, 2015).

No. 16-12744 (11th Cir. June 15, 2016).
Nos. 16-12065, 16-12649, __ F.3d __, 2016 WL 3000325 (11th Cir. May 25, 2016)
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it is clear that the prior convictions the sentencing court identified categorically
qualify as ACCA predicates under the elements or enumerated crimes clauses or,
alternatively, the ACCAs serious drug offense provision. When the record does
not make clear that the sentencing court relied solely on the ACCAs still-valid
provisions to classify each predicate offense and binding precedent does not
otherwise demonstrate that only valid ACCA clauses are implicated, we apply
Descamps v. United States.4 At that point, if it is unclear from binding precedent
that the state statute at issue is divisible under Descamps, then the applicant has
made out a prima facie case that his application contains a Johnson claim under
2255(h).5
In Adams, we held that, where the sentencing court may have relied on the
residual clause in imposing [an applicants] sentence, the sentence may be invalid
under Johnson. Slip op. at 8. We further held that, when an applicants claim
implicates Johnson, we must apply binding Supreme Court precedent such as
Descamps, even if this precedent does not on its own establish an independent
4 133 S. Ct. 2276 (2013). In Descamps, the Supreme Court held that a conviction
under a nongeneric, indivisible criminal statute categorically cannot qualify as an ACCA
predicate offense. Id. at 2285-86. We would not need to apply Descamps if the sentencing
court relied upon three qualifying serious drug offenses to impose the ACCA enhancement.
5

Of course, if binding post-Descamps precedent clearly holds that the state statutes
underlying the relevant prior convictions are divisible and that the facts of those convictions as
found by the district court meet the terms of the elements or enumerated clauses, then the
applicant would not have a viable Johnson claim.
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claim that is itself subject to the gatekeeping requirements [of 28 U.S.C.

2255(h)].6 Id. Johnson is implicated when the record does not refute the
applicants assertion that the sentencing court relied on the residual clause, and when
there is no binding precedent categorically classifying the offense or offenses in
question as either falling under the elements clause or enumerated crimes clause.
Under those circumstances, courts must apply Descamps and other binding Supreme
Court precedent in determining whether a prior conviction would still support an
enhanced ACCA sentence.7 Given the unsettled state of the Descamps divisibility
analysis as it applies to many statutes that these Johnson-based applications involve,
Johnson is implicated as a new rule of constitutional law, and the application
should be granted, in situations where neither the record nor current binding
precedent makes undeniably clear that, absent the residual clause, an enhanced
sentence validly was entered.
6

Although Hires suggested that Descamps cannot serve as a basis, independent or

otherwise, for authorizing a successive 2255 motion, we do not read this statement as applying
even when the application contain[s] a Johnson claim as described above. Hires, No.
16-12744, slip op. at 10 (emphasis added). We acknowledge that Hiress statement is in tension
with our holding in Adams, but because Adams was decided before Hires, its holding established
prior panel precedent that Hires could not overrule. See Morrison v. Amway Corp., 323 F.3d 920,
929 (11th Cir. 2003).
7

We cannot simply look directly to an applicants PSI to determine whether, under the
facts contained therein, the elements or enumerated crimes clause is applicable. We must
instead follow Descamps and other precedent that guide our analysis of the reach of those
clauses. [T]he sentencing court, of course, may rely on the PSIs undisputed facts. See
Hires, No. 16-12744, slip op. at 9. Aside from this exception, however, the Sixth Amendment
requires that any fact that increases a defendants sentence be proven beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000).
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Adams does not control, however, where binding precedent clearly classifies
an offense that the applicants sentencing court found to be an ACCA predicate as
either an elements or enumerated crimes clause offense (or a serious drug offense).
In these cases, the challenges an applicant is asserting do not contain the rule
announced in Johnson, so he does not make out a prima facie case. 28 U.S.C.
2255(h); See Hires, slip op. at 7-9.8 And when the sentencing court affirmatively
made a finding that an applicants ACCA predicate offenses qualified under either
enumerated crimes clause or elements clause, Johnson does not invalidate the
applicants sentence. Thomas, 2016 WL 3000325, at *3.
Read together, Adams, Hires, and Thomas establish a clear or unclear test
that turns on the sentencing courts findings and on-point binding precedent
regarding whether a particular crime categorically qualifies under a still-valid
ACCA clause offense (precedent that includes Descamps).

When neither the

sentencing courts finding on which ACCA clause or clauses applied nor binding
on-point precedent forecloses an applicants assertion that his sentence arose under
the ACCAs residual clause, we look to Descamps to ensure we apply the correct

At the same time, we have an obligation to evaluate whether our binding precedent
clearly has been abrogated by intervening caselaw. Similarly, to the extent an applicants own
previous proceedings, either on direct appeal or in a first 2255, resulted in a decision that has
been abrogated by intervening law, we may not apply it. See In re Lambrix, 776 F.3d 789, 793
(11th Cir. 2015) (explaining that law-of-the-case doctrine does not apply when controlling
authority has since made a contrary decision of law (internal quotation marks omitted)).
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meaning of the ACCAs words. Adams, slip op. at 8. And at this point, unless
post-Descamps binding precedent clearly resolves the residual clause ambiguity the
applicant has demonstrated, his application contain[s] a Johnson claim such that
his application is due to be granted. See 28 U.S.C. 2255(h).
When, conversely, it is clear based on the sentencing courts finding in
sentencing the defendant that each predicate conviction qualified under the ACCAs
elements or enumerated crimes clause, or as a serious drug offense, or binding
on-point precedent dictated that the predicate offenses categorically qualified under
one of these other clauses, then his application does not contain a Johnson claim.
In these limited circumstances, his application is due to be denied.
This analysis is all our gatekeeping function contemplates. Adams, slip op.
at 8. To decide complex issues of first impression, such as whether a particular
state criminal conviction obtained on a certain date categorically qualifies under the
elements clause or the enumerated crimes clause, or even whether the state statute
under which that conviction was obtained is divisible, would be impracticable given
our time limitation and lack of merits briefing in the successive 2255 motion
context. See 28 U.S.C. 2244(b)(3)(D); Jordan v. Secy, Dept of Corr., 485 F.3d
1351, 1357-58 (11th Cir. 2007) (When we make that prima facie decision we do so
based only on the petitioners submission. We do not hear from the government.
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We usually do not have access to the whole record. And we often do not have the
time necessary to decide anything beyond the prima facie question because we must
comply with the statutory deadline.); see also id. (concluding that the statute does
not allow us to reach the decision on the merits at the application stage but rather
restricts us to deciding whether the petitioner has made out a prima facie case of
compliance with the [28 U.S.C.] 2244(b) requirements).

Nor would it be

prudential, considering nothing we pronounce in orders on applications to file

successive 2255 motions binds the district court. See In re Moss, 703 F.3d 1301,
1302 (11th Cir. 2013) (noting that our limited determination does not bind the
district court, which is to decide the issues fresh, or in the legal vernacular, de
novo.).
With this clarification, we proceed to address Mr. Rogerss application.
III.

MR. ROGERSS CLAIM

Although our limited access to the record prevents us from knowing

precisely what Mr. Rogerss presentence investigation report (PSI) and
sentencing transcript would reveal about his ACCA enhancement, we know from
his first 2255 motion that the enhancement was based on: (1) a conviction for
aggravated battery, pursuant to Fla. Stat. 784.045; (2) a conviction for aggravated
assault, pursuant to Fla. Stat. 784.021; and (3) a conviction for conspiracy to
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distribute methamphetamine, pursuant to Fla. Stat. 893.13(1)(a). Mr. Rogers

contends that his prior convictions under Florida law for aggravated battery and
aggravated assault cannot serve as predicate offenses for the ACCA enhancement
in light of Johnson.9
We previously have held that a conviction under Floridas aggravated assault
statute categorically qualifies as a violent felony under the ACCAs still-valid
elements clause. See Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328,
1338 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S. Ct. 2551; see
also Hires, No. 16-12744, slip op. at 7 (relying on Turner to conclude that Mr.
Hiress aggravated battery conviction qualified as an elements clause predicate
offense). Likewise, we have held that a conviction under Floridas aggravated
battery statute categorically qualifies under the elements clause. Turner, 709 F.3d
at 1341.
Thus, because binding precedent clearly classifies as elements clause offenses
the convictions Mr. Rogerss sentencing court relied upon as ACCA predicates, his
application does not make out a prima facie case under Johnson. His application
for leave to file a second or successive motion hereby is DENIED.

Mr. Rogers does not challenge the use of his prior drug conviction as an ACCA
predicate offense.
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